The Death Penalty in Japan
How Genuine is Public Support?

Kawai Mikio [Profile]

[2012.03.13] Read in: 日本語 | 简体字 | 繁體字 | FRANÇAIS | ESPAÑOL | العربية |

In 2011, Japan for the first time in 19 years carried out no executions, and the number of convicts on death row reached its highest level ever. Law professor Kawai Mikio analyzes the degree of public support for capital punishment in Japan today.

Fewer murders are committed in Japan every year, but the number of death sentences is rising rapidly. Last year, there were just over 1,000 cases of murder and attempted murder in Japan, and more than 20 death sentences. At the same time, the number of actual executions is falling: none at all were carried out last year. As a result, the number of convicts on death row continues to rise. At present, there are 141 condemned prisoners awaiting execution, the largest number ever. In what follows, I want to take a look at the capital punishment system in theory and practice, before going on to analyze the state of public opinion on the death penalty in Japan today.

Passive Support and Lack of Concern

Japan’s criminal procedure system was introduced in 1880, shortly after the decision to adopt a Western-style legal system following the Meiji Restoration of 1868. The death penalty was introduced soon afterward, with sentencing following a criminal trial and executions carried out by hanging. A provision in the law states that the sentence should be carried out within six months, but all capital sentences require final approval from the minister of justice and in practice the six-month rule is never followed.

Since then, although the legal structure has remained relatively unchanged, the number of sentences and executions has fluctuated considerably according to the mood of the times. For many years, the tendency was for the number of both capital sentences and executions to decline. The number of executions fell quite rapidly—from an average of one to three executions per year from 1970 to 1989, to none at all in the three years from 1990 to 1992. Even so, the courts handed down several death sentences a year throughout this period. This resulted in large numbers of convicts on death row, until executions resumed in 1993. From then until 2003, the number of both convictions and executions held steady at 10 or fewer per year, until a sudden upturn in the number of capital sentences starting in 2004, reaching more than 20 in 2006 and 2007. The tendency for executions to be delayed or postponed indefinitely, however, has continued unabated, with the result that there are more than 140 people awaiting execution in Japan today.

As in other countries, there is a long-standing movement to abolish the death penalty on human rights grounds. An active chapter of the Japan Federation of Bar Associations, for example, campaigns persistently for a formal enquiry into abolishing the death penalty. But in general, human rights concerns carry little weight with the Japanese public, many of whom believe that criminals have no rights whatsoever. This is a problem for the criminal justice system as a whole. Human rights campaigners have fought back against this tendency. Their biggest achievement to date has been to secure retrial and acquittal for four people wrongly convicted in the 1980s. But this has not led to widespread support for the movement to abolish the death penalty even in cases where there is no question of a miscarriage of justice.

That there is widespread support for the death penalty in Japan is undeniable. But for the most part, the support is passive, with many people regarding capital punishment as a kind of unavoidable evil. Partly because the system has been left alone, relatively few people speak up passionately in favor of the death penalty—articles and books in favor of capital punishment are overwhelmingly outnumbered by writers calling for it to be abolished. The fact is that most people in Japan have become accustomed to regarding murder and capital punishment as existing totally apart from the world in which they live out their daily lives. Generally, they have not had strong views about the death penalty one way or another. For most people, it is a subject that has not affected them personally at all. This noncommittal attitude is not limited to the death penalty: much the same thing could be said of public policy and politics in general.

If this state of affairs had continued, there would presumably have been no change in sentencing policy. But in recent years media coverage of one particular murder case brought the bereaved family to national prominence. This star treatment has led to widespread public support for tougher sentencing. My personal view is that judges have misread the nature of public support for the death penalty. They see opinion poll results in which respondents without any sense of responsibility suggest that the death penalty is a necessary evil, and misconstrue this as evidence of positive support for capital punishment. I believe this has led to the increasing number of death sentences handed down in recent years.

Decisions Based on Accurate Information

The best way to treat the roots of this problem would be to enable people to make decisions with a sense of responsibility. When the lay judges system was introduced in 2009, there was widespread hope that allowing members of the public to adjudicate alongside professional judges in trials (including capital cases) would go some way to solving the issue of public disengagement and help to foster a greater sense of responsibility. But in fact, lay judges have often been pressured by the professional judges who take part in the deliberations, and large numbers of death sentences have been handed down since the system was introduced. I believe this is because people are not being given the accurate information they need to make autonomous decisions. There is a lack of transparency approaching secrecy about the reality of how death penalties are carried out. This is made worse by the fact that, according to public opinion polls, many people mistakenly believe that the incidence of violent crime is on the rise and that public safety in Japan is getting worse. Decisions made based on a mistaken understanding of the facts should carry no validity.

Is the public mood in Japan really in favor of the death penalty or its abolition? This is a difficult question. Compared to other affluent countries, there are almost no instances of suspects being shot dead during arrest or dying in prison. In this sense, Japan’s human rights record is good. There is also the fact that, as a result of Buddhist precepts against taking life, the death penalty was outlawed for more than 300 years during the Middle Ages. In later periods, on the other hand, many people were burned at the stake and subjected to other cruel methods of execution, while the traditions of the samurai class were used to justify kamikaze attacks as recently as World War II. The influence that ideas of reincarnation have had is also difficult to interpret.

My personal view is that the best approach would be not to abolish the death penalty but to maintain it as a symbolic sentence. More concretely, I believe that the decision whether to impose the death penalty should be made by the judiciary on a case-by-case basis, rather than left up to the legislature. For this purpose, I would retain the death penalty as a possibility. I would then hope that, although the accused might initially be given a death sentence at trial, instructions would be given that the sentence should not ultimately be carried out. The death sentence would remain on the statute books, but there would be a de facto moratorium on executions. This is the ideal that I would like to aim for.

(Originally written in Japanese on February 13, 2012)

  • [2012.03.13]

Professor at Tōin University of Yokohama. Born in 1960. Completed his doctoral studies in law at the University of Kyoto. Also pursued doctoral-level studies at the Pantheon-Assas University in Paris. Publications include Anzen shinwa hōkai no paradokkusu (The Paradoxical Collapse of the Myth of Safety) and Nihon no satsujin (Murder in Japan).

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